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Dansereau v. Alaska Div. of Elections (4/3/98), 955 P 2d 916
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DANA DANSEREAU, GREGORY J. GURSEY, )
SAMUEL HAYWOOD, KATHY HAYWOOD, ) Supreme Court No. S-7854
C.E. JENKINS, KIM RYAN, JAMES )
WEYMOUTH, RITA T. WEYMOUTH, T.J. ) Superior Court No.
NORTHCOTT, DAVID D. KYZER, M.D., ) 3AN-94-10948 CI
AND JANE AND JOHN DOES 1-10, )
Appellants, ) O P I N I O N
v. ) [No. 4962 - April 3, 1998]
FRAN ULMER, LIEUTENANT GOVERNOR, )
STATE OF ALASKA, AND DAVID )
KOIVUNIEMI, ACTING DIRECTOR OF )
THE ALASKA DIVISION OF ELECTIONS, )
TONY KNOWLES, PERSONALLY, AND )
FRAN ULMER, PERSONALLY, )
Intervenor Appellees. )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karl S. Johnstone, Judge.
Appearances: Wevley William Shea, Anchorage,
for Appellants. John B. Gaguine, Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe,
Justice, not participating.]
Public interest litigants prevailed on one of three
issues. They claim it was error not to award them full reasonable
attorney's fees and certain expert witness fees. We hold that it
was not error to deny the witness fees or to reduce the attorney's
fees to a reasonable amount, but that it was error to apportion the
fees by issue. We therefore affirm in part and reverse in part.
II. FACTS AND PROCEEDINGS
Ten voters (Contestants) challenged the validity of the
1994 gubernatorial election in which Tony Knowles and Fran Ulmer
were elected governor and lieutenant governor, respectively.
Dansereau v. Ulmer, 903 P.2d 555, 558 (Alaska 1995). The
Contestants advanced three main arguments: (1) that a North Slope
Borough voter assistance program violated state and federal
election laws; (2) that a postcard sent to shareholders of Doyon,
Limited violated state and federal election laws; and (3) that the
State committed election malconduct in its operation of the Prudhoe
Bay voting station. Id. at 559.
The superior court granted summary judgment to the State
on all three issues, and the Contestants appealed to this court.
Id. at 558. We reversed and remanded on the Doyon lottery issue,
and affirmed the grant of summary judgment on the other two issues.
Id. at 572. The Contestants then filed motions in this court
seeking attorney's fees and costs incurred in both the trial and
appellate courts. A single justice gave the parties an opportunity
to submit additional information.
Upon remand, and while those motions were pending, the
superior court allowed Knowles and Ulmer to intervene. On November
7, 1995, the parties agreed to settle and to dismiss the case with
prejudice. The initial proposed settlement called for an
arbitrator to decide the issue of attorney's fees incurred in the
trial and appellate courts. In a hearing that same day, the
superior court expressed reservations about approving the
settlement agreement containing the arbitration provision. The
parties then agreed at the hearing that the superior court could
act as the arbitrator and decide attorney's fees either under the
public interest exception to Civil Rule 82 or under Civil Rule
82(b)(3). The State also stipulated that the Contestants were
prevailing parties "on certain issues."
Pursuant to the settlement agreement, the Contestants
sought awards of $170,355 in attorney's fees and $32,212.54 in
costs, including $20,000 in expert witness fees for Robert Motznik.
The Contestants later requested $13,530 in additional attorney's
fees and $598.34 in additional costs. When informed of the
settlement agreement, this court entered an order deeming withdrawn
the costs and fees motions Contestants had filed with us.
After oral argument, the superior court awarded the
Contestants $21,500 in attorney's fees and $1,284.67 in costs. [Fn.
1] The Contestants appeal both awards.
A. Standard of Review
The award of attorney's fees and costs is committed to
the discretion of the trial court and is reviewed only for abuse of
discretion. McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165,
1167 (Alaska 1993) (attorney's fees); Beaulieu v. Elliott, 434 P.2d
665, 678 (Alaska 1967) (costs). Whether the trial court has
discretion to apportion a prevailing public interest litigant's
attorney's fees by issue is a question of law. Accordingly, we
apply our independent judgment to this question, and adopt the rule
of law most persuasive in light of precedent, reason, and policy.
Hickel v. Southeast Conference, 868 P.2d 919, 923 (Alaska 1994);
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). [Fn. 2]
B. Reduction of Total Time to Reasonable Amount
The superior court found that "a significant portion of
time expended by plaintiffs' attorney[s], as set out in the billing
statements attached to Mr. Shea's affidavits, was neither
reasonably incurred [n]or necessary in prosecuting this litigation
and thus should not be allowed." The Contestants' attorneys
asserted that they spent 1,135.7 hours on this case. The superior
court concluded that Contestants' attorneys should have spent no
more than 430 hours, with one-third attributable to the Doyon
postcard issue on which they prevailed. [Fn. 3]
The Contestants argue that the superior court ignored law
and evidence and abused its discretion in making a "manifestly
unjust"award. The Contestants argue that the attorney's fees
requested were "very reasonable." They claim that the time
involved was extensive and the issue of voting rights was novel.
In addition to the billing statements, they rely on affidavits in
which the Contestants and other members of the public state that
they find the fees reasonable, and evidence that the State spent a
similar amount of time on this case.
Although Civil Rule 82 provides for awards of partial
attorney's fees, we have created an exception to this rule for
public interest litigants. See Hickel, 868 P.2d at 923. Public
interest litigants are normally entitled to full reasonable
attorney's fees. See Hunsicker v. Thompson, 717 P.2d 358, 359
(Alaska 1986). Nonetheless, "a trial court has discretion to award
less than all requested fees, for instance, if it finds the hourly
rate is excessive or the total hours unreasonable." Id. (citing
City of Yakutat v. Ryman, 654 P.2d 785, 794 (Alaska 1982)). Since
the State has conceded that the Contestants are public interest
litigants, Contestants are eligible to recover full fees provided
they are reasonable.
The superior court stated that it had thoroughly reviewed
the court file and considered the Contestants' billing statements,
taking into account the complexity of the case and the risks to the
parties in order to determine whether the incurred fees were
reasonable. The superior court first discussed categories of
services for which it would not award fees: (1) communicating with
persons who had no role in the litigation; (2) doing things usually
handled by support staff; (3) dealing with media coverage; (4)
communicating with persons whose names were redacted on issues
unrelated to Doyon; (5) managing files and documents; (6)
performing work following oral argument in this court and prior to
publication of our decision; (7) doing things that were not
identifiable or necessary to litigation; and (8) working on issues
unrelated to Doyon. The superior court then itemized some eighteen
allowable categories of services and totaled the time that the
attorneys could have reasonably spent on each of those categories.
That total was 430 hours. This method of calculating the total
time that could have been reasonably spent was not inappropriate,
and the superior court did not abuse its discretion in concluding
that no more than 430 hours could have been reasonably spent by
The Contestants argue that the time spent by the State's
attorneys, 1151 hours, establishes the reasonableness of the time
spent by the Contestants' attorneys. Although the time spent by
opposing counsel can be relevant, it is not conclusive. An
opposing attorney may have spent unreasonable amounts of time, or
may have been forced to spend large amounts of time responding to
an adversary's inadequate or unreasonable legal efforts. The
superior court did not err in failing to rely on the time spent by
the State's attorneys.
C. Apportionment by Issue
Because the superior court found that the Contestants
prevailed on only one of the three issues on appeal, it apportioned
the fees by issue and based the award on one-third of the 430 hours
that it had determined were reasonable. The Contestants argue that
because they are public interest litigants, the superior court did
not have discretion to apportion their fees by issue. The State
argues that the court did not abuse its discretion in apportioning
fees by issue.
For private litigants, Civil Rule 82(b)(3) gives trial
courts discretion to apportion fees by issue when determining
reasonable attorney's fees. Alaska R. Civ. P. 82(b)(3)(K) ("The
court may vary an attorney's fees award . . . if, upon
consideration of the factors listed below, the court determines a
variation is warranted: . . . (K) other equitable factors deemed
relevant."); see also Alaska State Bank v. General Ins. Co., 579
P.2d 1362, 1369-70 (Alaska 1978) (finding court had discretion to
decline to award fees on each of the contested issues in
determining a reasonable amount of attorney's fees). Civil Rule 82
embodies a policy that the prevailing party is only entitled to
recover partial attorney's fees. Municipality of Anchorage v.
Gentile, 922 P.2d 248, 263 (Alaska 1996).
By contrast, "[a] prevailing public interest plaintiff is
normally entitled to full reasonable attorney's fees." Hunsicker,
717 P.2d at 359; see also Anchorage Daily News v. Anchorage Sch.
Dist., 803 P.2d 402, 404 (Alaska 1990) (prevailing public interest
litigant entitled to "full amount of its attorney's fees, to the
extent that they are otherwise reasonable"). The policy of
awarding full attorney's fees to public interest litigants was
designed to encourage plaintiffs to raise issues of public interest
as "private attorneys general." Anchorage v. McCabe, 568 P.2d 986,
990 (Alaska 1977). We have not directly addressed whether trial
courts have discretion to apportion fees by issue in public
Hunsicker restricts the discretion of trial courts to
award less than full reasonable attorney's fees to public interest
litigants. 717 P.2d at 359. We stated:
On remand, the court may consider the
reasonableness of the total time expended on
the case, the hourly rate charged and any
other components of a reasonable fee. It may
not consider [the losing defendant's] good
faith, a litigant's duty to consider the costs
of litigation, or the expectation that a
public servant would absorb certain costs of
maintaining her office.
Id. at 360.
In Hickel, the issue was whether the court must apportion
fees by issue and award fees only for those issues on which the
public interest litigant prevailed. 868 P.2d at 923. We held that
the trial court was not required to apportion fees by issue. Id.
at 925. Hickel suggests, however, that a trial court has "the
discretion to consider the prevailing party's degree of success on
issues when the court sets the award amount." Id. at 925-26
(citing Alaska State Bank, 579 P.2d at 1369). We now elaborate on
this statement and hold that for prevailing public interest
litigants, courts should only exercise this discretion in
In Hickel, one reason we gave for not requiring
apportionment by issue was that apportionment would be redundant in
light of Rule 82's framework. 868 P.2d at 925. We found that
"Alaska's approach already takes into account the degree of success
at the initial stage of determining prevailing party status." Id.
Once a public interest litigant has been identified as the
prevailing party, his or her varying degree of success on the
different issues is rarely a component of a "reasonable fee."[Fn.
4] We conclude that attorney's fees for prevailing public interest
litigants, therefore, may be apportioned only in exceptional
The superior court did not find and we see no basis for
finding exceptional circumstances here. For example, the superior
court did not find that the other issues Contestants raised were
frivolous or had been raised simply to inflate a prospective award
of attorney's fees. The superior court apportioned fees only
because it found that the Contestants only prevailed on one of
three issues on appeal. We reverse and hold that these public
interest litigants are entitled to full reasonable attorney's fees,
without apportionment by issue.
D. Expert Witness Fee
The Contestants claim that the superior court erred by
failing to award as costs expert witness fees for Robert Motznik.
Civil Rule 83 provides that the payment of witness fees
shall be governed by the rules for the administration of the
courts. Per administrative rule, an expert witness may be paid up
to $50 an hour for the time the witness spends testifying. Alaska
R. Admin. P. 7(c). The superior court has discretion, however, to
invoke Civil Rule 94 in order to relax Administrative Rule 7(c) to
prevent injustice. Alaska R. Civ. P. 94; Hickel, 868 P.2d at 931.
The superior court declined to invoke Rule 94 because it
found that Motznik was not paid for his work and had no binding
agreement with the Contestants to be paid for his work. It also
noted that Motznik did not testify. The superior court was not
required to invoke Rule 94. Parties cannot expect to recover as
costs expert witness fees that are contingent on the award itself.
Such a practice would tend to encourage experts to become
The superior court did not abuse its discretion by
failing to award costs for Motznik's expert services.
The superior court did not abuse its discretion in
finding that the total time spent by the Contestants' attorneys was
excessive and in calculating the reasonable time as 430 hours, nor
did it abuse its discretion in denying any cost award for expert
witness Motznik. We conclude, however, that it was an abuse of
discretion to apportion the attorney's fees by issue. We therefore
AFFIRM in part and REVERSE in part the September 4, 1996, final
judgment, and REMAND for award of attorney's fees based on the 430
hours that the superior court determined to be reasonable. [Fn. 6]
Although the superior court awarded attorney's fees for
proceedings before both this court and the superior court, it did
not invoke Appellate Rule 508 in calculating the award for services
performed on appeal. The parties authorized the superior court to
compute attorney's fees either under the exception to Rule 82 for
public interest litigants or under the factors delineated in Rule
82(b)(3). The superior court relied on the exception to Rule 82
for public interest litigants.
Despite the fact that the parties agreed that the trial judge
would act as an arbitrator, they do not contend that the standard
of review applicable to arbitration awards under the Uniform
Arbitration Act applies here. See AS 09.43.120, .130. Absent
thorough briefing and careful consideration, we would not apply an
arbitration standard of review to a decision of a superior court
judge even when a judge is said to be acting as an arbitrator by
stipulation of the parties.
We discuss in Part III.C whether the trial court has
discretion to apportion fees by issue.
We can, however, posit a situation in which a trial court may
consider a public interest litigant's varying degrees of success on
different issues. For example, a trial court could conceivably
find that some issues litigated by prevailing public interest
litigants were so frivolous that apportionment of attorney's fees
would be necessary to determine reasonable fees.
Civil Rule 94 provides: "These rules are designed to
facilitate business and advance justice. They may be relaxed or
dispensed with by the court in any case where it shall be manifest
to the court that a strict adherence to them will work injustice."
The Contestants listed several other issues in their "Points
on Appeal"that they failed to argue. These include the claim that
the trial court erred in awarding costs (other than the expert
witness fee) under Civil Rule 79, and the claim that the court
erred in allowing Tony Knowles and Fran Ulmer to intervene. These
issues, to the extent they are not subsumed in the arguments
addressed above, are waived. "[W]here a point is given only a
cursory statement in the argument portion of a brief, the point
will not be considered on appeal." Adamson v. University of
Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991); see also Petersen v.
Mutual Life Ins. Co., 803 P.2d 406, 411 n.8 (Alaska 1990) (holding
that argument was waived where appellant mentioned it in main brief
but failed to "advance any legal argument as to why the court